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Through Sickness, Health and Sex Change

HERE AND NOW Fran and Denise Brunner had children when Denise, center left, was Donald.Credit
Sylwia Kapuscinski for The New York Times

NEW MILFORD, N.J.

THERE are ways in which the Brunners are like many other middle-aged married couples. Former high school and college sweethearts, they finish each other’s sentences and order the same food at restaurants. They shuttle their three children to sports practices, and laugh when their 90-pound Labrador retriever jumps onto the sofa to lick guests.

“We’re one of the few of our friends who are still in our original marriage,” Denise Brunner said.

But it is not exactly the same union, as evidenced by their marriage certificate, which they have enlarged to poster size to make the point. The original, from 1980, listed Donald Brunner as the bridegroom and Frances Gottschalk as the bride. But a sex-change operation in 2005 turned Donald into Denise. Fran stood by her spouse, and the couple secured an amended certificate, putting “Denise” next to “bridegroom” for lack of other options.

Massachusetts is the only state to have legalized same-sex marriage, and the Brunners are two women married to each other in New Jersey. As this state (along with Connecticut, Vermont and New Hampshire) confronts challenges over whether its civil unions fulfill the mandate of providing same-sex couples equal rights and benefits, the Brunners offer themselves as Exhibit A on how the nation’s dizzying patchwork of marriage laws, which include the domestic partnerships of California and other states, may be out of step with people’s lives.

What if the Internal Revenue Service questions their joint tax returns? What if they retire to North Carolina, a state that they say is less legally friendly to transsexuals and same-sex couples? What if they were taking their daughter Jessica to college in Pennsylvania, and were in a car wreck that left Denise unconscious — would the authorities accept Fran as her wife?

“Are they going to recognize that she can make the decision for me?” Denise asked. “We don’t know that, and that’s not the time I want to contest that in court.”

No one tracks the number of transgender people in the country, let alone the number who stay married after a sex change, said Mara Keisling, the executive director of the National Center for Transgender Equality in Washington.

Julie A. Greenberg, a professor at the Thomas Jefferson School of Law in San Diego, said marriages like that of the Brunners are rarely challenged by government agencies because more conservative states do not recognize sex changes, and more liberal ones (like New Jersey) are loath to seem hostile to transsexuals.

The Brunners were already married when Donald became Denise. Transsexuals who marry after surgery pose a different set of questions, and there have been a number of custody, probate and other cases with decisions all over the legal map.

Urging the United States Supreme Court to tackle the issue in 2000, lawyers for Christie Lee Littleton, a Texas male-to-female transsexual suing her husband’s doctors for wrongful death, noted the confused landscape: “Taking this situation to its logical conclusion, Mrs. Littleton, while in San Antonio, Texas, is a male and has a void marriage; as she travels to Houston, Texas, and enters federal property, she is female and a widow; upon traveling to Kentucky she is female and a widow; but, upon entering Ohio, she is once again male and prohibited from marriage; entering Connecticut, she is again female and may marry; if her travel takes her north to Vermont, she is male and may marry a female; if instead she travels south to New Jersey, she may marry a male.”

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BACK WHEN Fran and Donald, now Denise, before their 1980 marriage.

The Supreme Court declined to take the case.

The New Jersey reference stems from a 1976 case in which an appellate court ruled that a man needed to pay support to his ex-wife, who was born male, essentially saying that sex is determined by current status, not DNA. But a 2004 Florida case took the opposite tack: a female-to-male transsexual who married a woman and then divorced lost custody of the children, as the marriage was declared invalid since both were born the same sex.

“The painful irony in New Jersey is it’s a good state in terms of respecting someone’s gender identity,” said David S. Buckel, the marriage project director at Lambda Legal, a gay-rights group, referring to the state’s antidiscrimination laws, which specifically protect transsexuals. “But in this instance that means they have worries about their marriage.”

That is why Robyn and Audri Bazlen-Weglarz, who live in Pompton Lakes, N.J., decided to marry in June 2006, six months before Robyn, who owns a fence company, completed the male-to-female transition. They did not want to settle for a civil union, which Robyn likens to being “a second-class citizen,” and they worried that after surgery, once both were living as women, they wouldn’t be allowed to marry.

“We always worry about the day someone does question our situation,” Robyn, 55, said. “All it takes is some right-wing people, and there’s no way to know where the court is going to rule.”

Legal groups that have fought to preserve traditional marriage are less concerned with couples like the Brunners than those like the Littletons, who seek a heterosexual union after surgery.

“What you’re born with is what you are,” said Mathew Staver, the founder of the Liberty Counsel, a nonprofit organization in Florida, who successfully argued the final stages of the 2004 Florida case. “It’s the same as if you go through plastic surgery to look like Marilyn Monroe, but you’re still not Marilyn Monroe.”

ON March 4, the California State Supreme Court heard arguments in a case that questions whether the state’s domestic partnership law goes far enough to ensure equality for same-sex couples. In Connecticut, a civil-union state, the state Supreme Court is expected to rule within weeks on a similar case.

While both Brunners say their partnership is stronger now than ever, it is also more complicated. They have lost sleep over how they would be regarded in emergency rooms and probate courts, they fear traveling to states that lack explicit protections for same-sex couples, and they find routine paperwork thorny.

Neither the Brunners nor the Bazlen-Weglarzes have faced questions from the Internal Revenue Service, despite the federal Defense of Marriage Act, which defines a marriage as a union between a man and a woman. Bruce I. Friedland, a spokesman for the I.R.S., declined to comment on the status of transgender married couples.

A spokeswoman for the Social Security Administration said in an e-mail message that the agency “will review each case on an individual basis to determine what effect gender change has on marital status, since each state has different laws on gender change and its effect on marital status.”

Filling out college financial-aid applications or emergency-contact forms, Fran, 50, a microbiologist, crosses out “father” and writes in “parent” for Denise, 51, a plumber.

The Brunners attribute their staying together, in part, to having discussed Donald’s gender-identity questions from the earliest days of dating.

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QUALITY TIME Denise, second from left, and Fran Brunner with Alyssa, 16, and Scott, 18.Credit
Sylwia Kapuscinski for The New York Times

“Fran helped me literally buy my first bra and first wig,” Denise recalled. “It just didn’t feel right trying to have a lifelong partner who didn’t know.”

Denise said her discomfort began in kindergarten: “I wanted to play in the kitchen, but the teachers were forcing me to go out with the boys in the sandbox.”

In high school, Denise recalled, “the first time I could put a name to what I was feeling” was when reading a book about sex-reassignment surgery. Fran said she thought marriage would stop the cross-dressing, but she kept discovering caches of women’s clothes, which led to fights.

“She was always resentful, because the money I would spend on my second wardrobe would be better spent on diapers, household expenses,” Denise said.

“And vacations,” chimed in Fran, a woman of fewer words.

In 2002, Donald started taking female hormones. Fran did not want to break up.

“She was still the same person, she’s still the same person, but the package had just changed,” Fran said. “Everything that attracted me to her, or him, is still there, and we’re comfortable.”

Their older daughter, Jessica, became suspicious when Donald recommended a nail salon to her. When the Brunners told their children about the pending surgery, Jessica, then 17, worried about divorce; Scott, then 14, said, “cool”; and Alyssa, 12, cried for hours that she wanted a normal dad.

The couple went door to door, explaining to the neighbors.

“I had everything from ‘Welcome to the other team’ to ‘What are you going to do, parade around in front of my house in a dress?’ ” Denise remembered.

Denise now lectures about transgender issues. The couple appeared on Oprah Winfrey’s show last fall, and testified before a commission reviewing New Jersey’s civil union law, hoping to persuade lawmakers to allow gay couples to marry.

“My kids know what marriage is all about, my community knows what marriage is all about,” Denise Brunner told the commissioners. “Nothing has changed. The world hasn’t fallen apart because New Jersey has a same-sex marriage.”

A version of this article appears in print on , on page ST1 of the New York edition with the headline: Through Sickness, Health, Sex Change ... Order Reprints|Today's Paper|Subscribe